J OFN r.t . DALTON xxxxxxxx.xxx

SENATE : Board of Election Commissione~s for City ~l St. Louis cannot make any division or city

ELECTIONS : into senatorial districts , new districts having already been established under l a st decennial census .

June 5, 1953

Honorabl e Michael J . Doherty Chairman ~oard of ~lection Commissioners City of St . Louis 208 s . Twelfth Bo~levard St . Louis 2 , Uissouri

Dear Sir:

\le have received your request for an opinion of this department , which request is as follows :

"I have been directed by tho ")oo.rd of Election Commissioners for the City of s t . Louis to write ~~ is l etter to you and request herein a written opinion concerning the authority and richt vested in this Board to re­dintrict t he seven senatoria l districts with in t ho City of Ot . Louis .

"This uon.r d fools that t he redistrictin~ ao declared a nd c ortiriod by its prede­cessor ~oard is unfair and 1llo~al. This Board has declared its policy "'ith r e spect to redistrictin3 by t ho adoption of the followi~~ resolutions :

•The Loard of ~lectio~ Co~~issioners is unanimousl y of the opinion that the redistrictinb of ~enatorinl Districts in the City of s t . Louis as declared, ordered and certified under the las t r edistricting is unfair , irrecular and illegal; that it was drawn arbitraril y , and capriciousl y and t hat it is unjust

Honorable Michael J . Doherty

and unfair to the voters of the City of st . Louis . But before t h is Board can embark upon another redistricting pro­gram, or attempt such redistricting , it wishes to be satisfied that it is acting and performing its duties under and within the enacted and declAred l aws of this state . For such reason it ha s requested one of its counsel to be present and ad­vise the Board as to its r ights and authorities to proceed and undertake another redistriction. • Article III, Section 10 which con cerns and rel ates to the instant question, is as follows :

' The l a st decennial census of the · United s tates s hall be used in appor ­tioning representatives and determining the popul ation of senatorial and repre­sentative districts . Such districts cay be a l tered from time to til::le a s public co~venienco may require .•

" The Board s L"'lceroly believes that another and new redistricting is ur~ently required in the public interest and to provide more compact and con tiguous districts . I t clearl y appears that the present districts are arbitrary and unfair and in direct conflict with public convenience.

"Under such circumstances, as aforesaid, it is our intention to redistrict the seven senatorial d istricts within the City of s t. Louis, if you are of the opinion that we possess s uch l egal authority and r ight so to do .

"Incidentally , we a lso take t h is opportunity to direct your attention to the case of PAUL VI . PREISlER vs. PAUL C. CALCATERRA , et al ., Docket lio . 43596, wh ich presently 1s pending in the Missouri Suprece Court. It is our understanding tha t Count II of the action i nvolves the question of redistricting. Perhaps such issue n i ght be speei1'ically in­jected t herein and some decision obtained t hereon. ''

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Honorable Michael J . Doherty

The establishment of senatorial districts in the counties entitled to more than one senator is provided by Section 8 of Article III , Constitution of Uissouri, 1945, which reads as foll ows :

11 \lhon any county is entitled to :c.ore than one senator the county court , and in tho City of st . Louis the body authorized to establish election precincts , shall divide tho county into districts of contiGUOUS territory, as cocpact and nearly equal in population as cay bo , in each of unich one senator shall be e l ectE>d. 11

Section 10 of Article III of the Constitution of Missouri,

1945, provides :

"The last decennial census of the United States shall be used in apportioning representatives and determining the popu­lation of senatorial and representative districts. Such districts oay be altered from time to timo as public convenience may require . "

The only statutory enact~nt relative to the natter is found in Sections 22 . 020 and 22 . 030 , RSMo 1949 . Section 22.020 provides for the certification of the number of senatorial districts by the secretary of state to tho bodies authorized to establish the districts. Section 22 . 030 provides :

"On or before ~arch first following the certification by tho secretary of state as provided in section 22 . 020 , the board of e lection commissioners of the city of st . Louis and the county courts of t~ose counties which by said report are entitled to core t han ono senator , shall certify to tho secretary of state a complete statement of tho senatorial districts established therein; and in tho event that said board of election co~isnioners of tho city of St . Louis ar the county courts of such

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Honorable llichae l J . Doherty

counties fail to comply Tlith this section, the number of senators in such districts to be e lected at t he next election shall be nominated and el ected by the electorate from t he state at l a r Ge; provided tho per­sons so nominated and elected shal l reside in the city or the county e~titled to auch senators . "

We are of the opinion that tho answer to your inquiry is to be found in the decision of tho 5uprene Court of Missouri in the case of State ex rel . ~ajor v . Patterson, 229 Mo. 373 , 129 S. 1. 888 . That case involved an attempted redivision of Jackson County into l egis lative districts under the Cons titution of 1875. Section 3 of Article IV of the Constitution of Missouri, 1875, authorized the county court to divide co~~ties entitled to more than one representative into legislative districts . Section 6 of Article IV of tho Constitution of Missouri , 1875, authorized tho circuit court to divide into senatorial districts any county entitled to more than one senator . Section 9 of Article IV of the Constitution of ~issouri , 1875, provided:

"Senatorial and Representative districts may be altered, from time to time , as public convenience may require . \ilion any Senatori a l district shall be composed of two or more counties , they shall be con­tiguous ; such districts to be as cocpact as mlly be , and in the formation of the same no county shall be divided. "

In the Patterson case , supra, it ~a s contended that , under the provisions of Section 9 of Article lV of the CoP~titution of 1875, the county court had the authority to make new repre­sentative districts for Jackson County . The court held that such authority was not to be found in Section 9 of Article IV, and its decision and opinion cover the question asked by you. In the course of its opinion the court stated (229 Mo. l . c . 381) :

"To start with , this section gives, within itse1r , no power to the county court . The county court is not mentioned and if it was intended to g ive it power , such fact ~ust bo gathered from the context of the article and not from the section itself . Going to the section it~elf , it mentions

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Honorable Michael J . Doherty

both senatorial and representative dis­tricts . That the county courts have no power as to senatorial districts mus t be conceded. That the power here conferred as to senatorial districts had reference to a leg islative power reserved by the Constitution t o that branch of the govern­ment. can not well be disputed. For as to most of the senatorial districts the Legislature has the right to fix the boundaries . If then it appears that the Constitution was reserving to the Legis­lature the r ight to leg islate as to sena­torial districts , is it not reasonable to construe that such was tho intent as to representative districts? Both are men­t i oned tobother . One clearly refers to a reservation of po~er in tho Legislature, why not the other? But the section says that such districts aay be altered • fro~ time to time .' How must t h is be read? That senatorial districts cannot be re­a:rringed oftener thin once 1ri tenlears Is more than evld~from ~ cons Itution. ***" (Emphasis our~ -

The court further stated (229 Mo. l . c . 388 ) :

"If it be said t hat these two sections grant a power to the county court in the one instance and to t h e circuit court 1n the other , yet the exercise of this power must be within constitutional and legal prescriptions . Tl~ po\Ver confided to both is dependent upon prior legislative action. In the matter of senatorial districts , nothing is said as to a rearrangement of them by the circuit court or any other body. In neither case can the legislative sanction be g iven oftener than once in every ten years , and in both cases the contemplation of the law is that the subdivision shall be at once aade , and remain made until the next decennial period. It micht be said that injustice \7ould follow in ln ter years from the division made of senatorial dis ­tricts in a county entitled to more than

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Honorable Michael J . Doherty

one senator, yet there is no l ocal ~ay to escape it. ~ ~at would be a f air division of a county at one time , might be apparentl y inconvenient , if not unfair , later , but no authority is vested anywhere to authorize a change . If this be true as to the sena­torial districts of a single county, why should t here be a different rule as to repre­sentative districts? If ci.rcuit courts were not to be i nvested with plenary power to re­divide such counties ad libitum, by what reason can it be urgea-tEat county courts were given such powers by mere implication?

"It is true that section 9 of article 4 says that •senatoria l and representative districts may be altered, from tice to time, as public convenience may require, • yet this language is applied to a ll senatorial districts and not merely to districts within a s ingle county. It is clear that as to all senatorial districts save and except those within a singl e county , the power to fix the lines thereof lies with the Leg islature, or in the event of its failure to act , with the Governor , Secre­tary of State and Attorney- Ceneral . Could it t hen be said that a s to senatorial dis­tricts , this section 9 referred nore to the powers of t he circuit courts t han to the powers of the Legislature? We think not . Yet the language is as definite as is the languase referring to l ecislative districts . As stated before there is an evident reserva­tion of power in this clause , but it is to the Legisl ature and not to the courts , either circuit or county . "

The court further stated (229 Mo . l . c . 391 ) :

"* * -i} This section 9 of article 4 is merely directory in terms , and in our judgment reserves to tho Legislature the right to provide for the alteration of legislative districts once established a s per the terms of the Constitution. In other words the Constitution contemplates

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Honorable Michael J~ Doherty

t hat t hese districts shall be established at decennial periods , but has r eserved a power to tha Legis l ature to provide by law for a change in the same . This , upon the theory that t here is a difference between dividing a county into districts , and afterward changi ng the boundary lines of those districts . That this power is re­served to the Legislature is further emphasized by the fact t ha t section 9 does not , within itself , undertake to prescribe the conditions under which tho changes or alterations s hould be made . Uor does it undertake to prescribe the met hod of de ter­I:lini ng the requisi tea for such changes . ~hese things uere evidently l oft for l egis­lative deteroination , and t ho Legislature has not acted. This sectlon 9 only speaks of changes when •public convenience rnay require .• It places no restrictions as to compact and contiguous territory. It con­tains no safeguards whatever . Upon its face it is not self- executing, but clearly indicates t hat there was to be legislative action. If so, then how does it authorize action upon the part of the county court . Unless it can be said that this section is self-executing , the ~hole of respondents' claims fail . So that , in addition to the construction to be given to the words •from time to time t as appl ied to both senatorial and representative districts , we are con­fronted with this f urther barrier. To give section 9 the construction contended for by respondents , it must stand alone . As above indicated, the use of the phrase •f rom time to time ,• if not co1sidered as the decennial period, precludes the idea of makinG both sections 3 and 9 stand tog ether. If s ection 9, to give it respondents • construction, must stand a lone , then as above indicated, {l) it fails to confer any power upon the courts, either a s to senatorial or represen­tative districts, and (2) it upon its face is not self- enforcing , and contenplates and r equires l eg islative action. In other words , it is a reservation of power to the Legisla­ture and not a conference of power upon the

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Honorable lUchael J . Doherty

courts . We hardly think the l ancuage o£ t L.is section sell-onforc~ . ( ~tate ex rel . v . Cr ibson, 195 tio . l . c . 260. )

"Let it be said t hat there is a direction therein contained to the e£fect that both senatorial and representative districts may be a ltered between decennial periods for public convenience , yet it is not therein said by whom to be altered, nor what guide­posts shall be observed 1n the alteration. This strongly tends to show that this clause of the Constitution was intended to g ive l egislative authority to act , and by proper l aws provide for such alteration or changes in previously establi shed districts , but not to confer upon courts a power not usually exercised by them. "

The court further stated (229 Mo . l . c . 394):

"So when we take tho context of the present article 4 , and the origin of section 9 thore1n , it appears to us clear that t here is a reservation of power to the Legislature , and until the Legislature acts uith reference to the alteration of the districts established under section 3, there can be no action by the courts . The Legislature perhaps can act by laws duly passed, and in so doing can del egate i ts constitutional powers over the subject­matter but up to this tioe it has not been done . Until such tima as tho Legislature may legall y provide for the a l teration of legis­lative districts , t here is no such pouer 1n the county c ourts . "

This decision appears to us to preclude any new redis­tricting at the prosont til:le as a r.Ultter of npublic convenience" under section 10 of Article III of tho Co.1stitution of 1945.

\fuether or not tho districts as presently constituted are "of contiguous territory, as co::tpact and nearly equal in popu­l ation as may be , n is a question of fact . State ex rel . Davis v . Ramacciotti (J.fo . Sup.), 193 s . \t . (2d) 617 • \we cannot de­termine whether or not the districts as presently forned comply

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Honorable Michael J . Doherty

with the constitutional requirements , and do not attempt to do so .

You state that the Board has determined t hat "the l a st r edistricting is unfair , irregular and illegal; that i t was drawn arbitrarily , and capriciously and t hat it is unjust and unfair to the voters of t he City of s t . Louis . " We find, however , no authority conferred upon the Board to make such a determination and to orde r a redistricting based thereon.

Courts may pa ss upon the validity of a redistricting . 59 c. J ., States , Section 50, page 83. In the case of Preisler v . Calcaterr a , referred to i n your opinion request , p l aintiff sought to have the redistricting here i n question declared invalid and to have the court order , under the provis ions of Section 22. 030 , RSMo 1949 , quoted above , t hat senators from the city of St . Louis shoul d be ·elec ted at l ar ge . The petition was dismissed in t he circuit court , and tho matter is now before the Supreme Court on appcnl .

In view of the policy of t his off ice not to render opinions on matters pending in lit i cation , we will not attenpt to pass upon the que stion of what the effect of a decision of a court holding the previous redistricting invalid woul d be, in view of the pttovisions of Section 22 . 030 , supra . \ e do note t hat that section requires the Board to act prior to March 1, after re­ceiving notice from the secretary of state of the number of senators to which the city of s t . Louis is ent i t led, and that it does provi~e that upon fa ilure of the Board to act within the t time the senators f ron the city of St . Louis shall be elected from the sta te at l arge , and that there is no provision for action by the Board subsequent to Ma rch 1. Shoul d the Supreme Court fail to pass ~pon the question in the Preisler case , and shoul d the Board or someone else entit l ed to do so properly bring before a court of competent jurisdiction the question of the valid ity of the redistricting, the question of t he effect of an adjudication of invalidity could be de termined judicia lly at t he same t~e .

CONCLUSIOtl

Therefore, it is the opinion of t h is department t hat, the Board of Lloction Co~issioners of t he City of st . Louis having previously divided the city of St . Louis into senatoria l dis ­t ricts following the 1950 ~ecennial Census , Secti on 10 of

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Honorable Michael J . Doherty

Article III of the Constitution of Uissouri, 1945, which authorizes the alteration of senatorial districts from time to time as public convenience may require , does not confer any power upon the Board of Election Commissioners of the City of st. Louis to order a redistricting at this time .

This conclusion is based upon tho promise that the previous redistricting is l egal and valid until decl ared otherwise by a tribunal having authority to do so.

The f oregoing opinion , which I hereby approve, was prepared by my Assistant , Mr . Robert n. \'Jelborn.

RRrJ:ml

Yours very truly ,

JOHN M. DALTOll Attorney General